Chet Ram (Deceased) through LRs vs Mati Ram @ Moti Ram (deceased) through LRs

Satyen Vaidya, J

Heard

One Mati Ram alias Moti Ram filed suit No. 1/1 of 2017 in the Court of learned Senior Civil Judge, Sirmaur at Nahan against S/Sh. Chet Ram, Ram Dutt, Devi Ram and Babu Ram all sons of Shri Tota Ram. Plaintiff sought a declaration to the effect that he was owner in possession of the suit land and the revenue entry of tenancy recorded in favour of defendants was wrong and illegal.

Civil Suit No. 1/1 of 2017 was decreed by the learned trial court in favour of plaintiff vide judgment and decree dated 23.10.2019. Defendants No. 2 to 4 i.e. S/Shri Ram Dutt, Devi Ram and Babu Ram assailed the decree dated 23.10.2019 in appeal under Section 96 of the Code of Civil Procedure (for short, ‘the Code’), which was registered as Civil Appeal No. 16-N/13 of 2023 in the Court of learned Additional District Judge, Sirmour at Nahan. On the death of plaintiff Mati Ram alias Moti Ram his legal representatives (respondents 1(a) to 1(g) herein) (hereinafter referred to as plaintiffs) were brought on record.

During the pendency of the appeal, it also transpired that Shri Chet Ram (defendant No.1 in original Suit No. 1/1 of 2017) had died when the suit was pending before the learned trial Court. Consequently, the appellate court proceeded to set aside the judgment and decree passed by the learned trial Court and remanded matter back for decision afresh.

After remand, on the application of plaintiffs, the legal representatives (petitioners herein) of deceased defendant No.1 Sh. Chet Ram [hereinafter referred to as defendants 1(a) to 1(c)] were brought on record.

The defendants 1(a) to 1(c) filed an application (CMA 570/6 of 2024) before learned trial court seeking leave to file independent written statement. The said application of defendants 1(a) to 1(c) has been dismissed by learned trial court vide order dated 4.12.2024, which is subject matter of challenge in the instant petition.

It is contended on behalf of defendants 1(a) to 1(c) that the provisions of Order 22 Rule 4 (2) of the Code entitles them to file independent written statement and the learned trial Court has erred by not exercising the discretion in their favour.

Admittedly, the original defendant No.1 [predecessor in interest of defendants 1(a) to 1(c)] had filed the written statement and had also contested the suit.

Order 22 Rule 4 (2) reads as under: -

“(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant”.

Thus, a person made party under Rule 4 of Order 22 though is entitled to make any defence but such defence should be appropriate to his character as legal representative of the deceased defendant.

Copy of application filed by the defendants 1(a) to 1(c), seeking leave to file independent written statement, has been placed on record as Annexure P-8. The only averment made in the application is that after impleading the legal representatives of deceased defendant No.1 Sh. Chet Ram, an opportunity to contest the suit by filing independent written statement was not granted thereby causing great injustice and prejudice to them. There is no averment as to what defence was sought to be raised by defendants 1(a) to 1(c), which could be appropriate to their character as legal representatives of deceased defendant No.1. Since, learned trial court had no material before it to decide on the issue whether to allow defendants 1(a) to 1(c) to make defence as legal representatives of deceased defendant No.1, no fault can be found with the impugned order. Learned trial court has rightly observed that the legal representatives cannot be allowed to set up a new case under the garb of right vested in them by virtue of provision made in order 22 Rule 4(2) of the Code. It cannot be ignored that the predecessor in interest of defendants 1(a) to 1(c) had already contested the suit by filing a written statement and issues were framed accordingly. The parties had already lead evidence. That being so, the defendants 1(a) to 1(c) could not evade the disclosure of additional defence sought to be raised by them by way of independent written statement.

Learned counsel for the petitioners has placed reliance on a judgment passed by the Hon’ble Supreme Court in Civil Appeal 1960 of 1980, titled Bal Krishan vs. Om Parkash, AIR 1986 SC 1952 to assert that Sub-rule 4 (2) of Order 22 authorizes the legal representatives of defendant to file additional written statement or statement of objections, raising all pleas which the deceased defendant had or could have raised except those which were personal to the deceased defendant or respondent. By taking the benefit of aforesaid judgment, it has been contended that the legal representatives have a right to file independent written statement and there cannot be any impediment imposed by the Court. The argument so raised deserves to be rejected for the reason that even in the aforesaid judgment, the absolute right of legal representatives of deceased defendant to file written statement has not been recognized. Rather, it has been held that the legal representatives can take objections by way of written statement except those which were personal to the deceased defendant. The fact of the matter remains that a legal representative of deceased defendant intending to make defence has to satisfy the court about the nature of defence sought to be raised by him more particularly when his predecessor in interest had already raised a defence by filing written statement.

Learned counsel for the petitioner has also placed reliance on the following extract from the judgment passed by Hon’ble Supreme Court in case titled Sumtibai & others vs. Paras Finance Co. & others, reported in (2007) 10 SCC 82:-

“8. Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent”.

The aforesaid judgment again will not help the cause of the petitioners, as it has been passed in its own facts as recorded by the Hon’ble Supreme Court in para-7 of the aforesaid judgment, which reads as under:-

“7. Before adverting to the question involved in this case, it may be noted that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was not Kapoor Chand alone, but also his sons as co- owners. Hence, prima facie, it seems that the sons of Kapoor Chand are also co-owners of the property in dispute. However, we are not expressing any final opinion on the question whether they are co-owners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand have a right to take this defence by way of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or not, of course, is for the trial court to decide. Hence, in our opinion, the courts below erred in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement”.

Another judgment relied upon by the learned counsel for the petitioners has been passed by Hon’ble High Court of Delhi in the matter of Saiyed Sirajul Hasan vs. Murtaza Ali Khan Bahadur & others, AIR 1992 Delhi 162. The same again will not serve the purpose of the petitioners for the reason that again the absolute right of legal representatives of deceased defendant to file written statement after impleadment in the suit has not been held to exist.

As noticed above, since the petitioners had not made even a whisper about the nature of defence sought to be raised by them, the learned trial Court cannot be said to have erred in exercising its judicial discretion. The impugned order also cannot be said to be a result of any illegality or perversity.

Needless to say, the jurisdiction of this Court under Article 227 is restrictive. The interference can be made only when the order passed by the Court or Tribunal is found to be palpably illegal, perverse or without jurisdiction or in other words the order has to be such which could not have been passed, in the given circumstances, by exercise of judiciousness.

In result, there is no merit in the petition and the same is accordingly dismissed.